Search Decisions

Decision Text

USMC | DRB | 2008_Marine | MD0801539
Original file (MD0801539.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20080715
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN

Applicant’s Request: Characterization change to:
                  Narrative Reason change to:

Summary of Service
Prior Service:
Inactive: USMCR (DEP) 20010216 - 20010225                Active:

Period of Service Under Review:
Date of Enlistment: 20010226     Period of E nlistment : Years Months     Date of Discharge: 20050121
Length of Service : Y ea rs M on ths 2 D a ys Education Level: Age at Enlistment: AFQT: 57       
MOS: 0621 (Field Radio Operator) Highest Rank: Fitness R eports:
Proficiency/Conduct M arks (# of occasions):       ( ) / ( )
 Awards and Decorations ( per DD 214): Rifle Pistol NUC COC LOA

Periods of UA / CONF : 20041007 - 20041030

S P CMs :  
20041207 : Art icle 107 ( False o fficial s tatements to NCIS ), 2 specifications
Art icle 128 ( Assault ), 3 specifications
Art icle 92 ( Fraternization w/ a non-NCO & Distribution of alcohol to a n underage non-NCO )
Sentence :

6105 Counseling :
20041207 : For Art icle 107 ( False o fficial s tatements to NCIS ), 2 specifications
Art icle 128 (Assault), 3 specifications
Art icle 92 ( Fraternization w/ a non-NCO & Distribution of alcohol to a n underage non-NCO

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

         “ 20010226 ”
         “ 3 Yrs 10 Mths 4 dys ”

The NDRB will recommend to the Commandant of the Marine Corps that the DD 214 be corrected as appropriate.

Types of Documents Submitted/reviewed

 Related to Military Service:      DD 214:          Service and/or Medical Record:            Other Records:

Related to Post-Service Period:  
         Employment:                        Finances:                          Education /Training :     
         Health/Medical Records:           Substance Abuse:                           Criminal Records:       
         Family/Personal Status:                   Community Service:                References:              
Additional Statements From Applicant:             From Representat ion :              From Member of Congress:
Other Documentation (Describe) :


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues
1. Educational o pportunities .
2. Record of s ervice .

Decision

 Date: 20 08 1002            Location: Washington D.C .         R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall MISCONDUCT .
Discussion

 : either which the Board cannot form the basis of relief for the Applicant, or the Board does not have the authority to grant the relief for which the Applicant petitioned. The Applicant is directed to the Addendum , specifically the paragraph concerning , regarding .

: ( ) . The Applicant contends his discharge should be upgraded based on his record of service which was good apart from a single period of misconduct. For the edification of the Applicant, d espite a Marine’s prior record of se rvice certain serious offenses, even though isolate d, warrant separation from the n aval service in order to maintain proper order and discipline. In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant’s record of service was marred by a Special Court-Martial for Violations of the Uniform Code of Military Justice: Article 107 (False official statements), 2 specifications; Article 128 (Assault), 3 specifications; and Articles 92 (Failure to obey orders or regulations), 2 specifications. These violations are considered serious offenses which could have resulted in the Applicant being awarded a pun i tive discharge. However, t he Applicant did not receive a punitive discharge but was subsequently administratively discharged.

 W hen the quality of a member’s service has met the standards of accepted conduct and performance of duty for military personnel , it is appropriate to characterize that service under “H onorable ” conditions. A “General (Under Honorable Conditions)” is appropriate if the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance outweighs positive aspects of the member’s military record. The Applicant’s violations and special court-martial represent si g nificant negative aspects of his conduct and the Board determined an upgrade was not appropriate.

After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record, Discharge Process and evidence submitted by the Applicant, the Board found

Pertinent Regulation/Law

 A The Marine Corps Separation and Retirement Manual, (MCO P1900.16F ) , effective 1 September 2001 until Present,
Paragraph 6210, MISCONDUCT .
B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs , Part V, Para 502, Propriety and Para 503, Equity .

C. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ : Article 107 ( False official statements), Article 128 (Assault), and Article 92 (Failure to obey orders or regulations).


ADDENDUM: Information for the Applicant

 Complaint Procedures : If you believe that the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC 20301-4000 . You should read Enclosure (5) of the Instruction before submitting such a complaint. The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness. You may view DoD Instruction 1332.28 and other Decisional Documents by going online at “ http://Boards.law.af.mil . ”

Additional Reviews : Subsequent to a document review, former members are eligible for a personal appearance hearing, provi ded the application is received at the NDRB within 15 years from the date of discharge. The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this discharge. Representation at a personal appearance hearing is recommended but not required. If a former member has been discharged for more than 15 years , has already been grante d a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

 Service Benefits: The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.
Employmen t / Educational Opportunities : The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.

Reenlistment/RE-code: Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.
Medical Conditions and Misconduct : DoD disability regulations do not preclude a disciplinary separation. Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons. Whenever a member is being processed through the Physical Evaluation Board, and subsequently is processed for an administrative involuntary separation or is referred to a court-martial fo r misconduct, the disability evaluation is suspended. The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct, the medical board report is filed in the member’s terminated health record. Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or other medical related reasons. ” Only the Board for Correction of Naval Records can grant this type of narrative reason change.
Automatic Upgrades - There is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. Examples of documentation that may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.

Issues Concerning Bad-Conduct Discharges (BCD ) – Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief. With respect to a discharge adjudged by a special court-martial, the action of the NDRB is restricted to upgrades based on clemency. Clemency is an act of leniency that reduces the severity of the punishment imposed. The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

Board Membership: The names and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:

 Secretary of the Navy Council of Review Boards
 Attn: Naval Discharge Review Board
 720 Kennon Street SE Rm 309
 Washington Navy Yard DC 20374-5023

Similar Decisions

  • NAVY | DRB | 2008_Navy | ND0801538

    Original file (ND0801538.rtf) Auto-classification: Denied

    The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case by case basis to determine if post service conduct mitigates the reason for the characterization of discharge.Although the Applicant states he has matured and changed, he did notprovide a personal statement, supporting documentation of post service accomplishments or character witness statements to support his request...

  • USMC | DRB | 2008_Marine | MD0800965

    Original file (MD0800965.rtf) Auto-classification: Denied

    By a vote of the Narrative Reason shall SEPERATION IN LIEU OF TRIAL BY COURTS-MARTIAL.Discussion : This is either an Issue which the Board cannot form the basis of relief for the Applicant, or one the Board does not have the authority to grant the relief for which the Applicant petitioned. The Applicant should be aware completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis to determine if...

  • NAVY | DRB | 2008_Navy | ND0801031

    Original file (ND0801031.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated to Military Service: DD 214: Service and/or Medical Record: Other Records: Related to Post-Service Period: Employment: Finances: Education/Training: Health/Medical Records: Substance Abuse: Criminal Records: Family/Personal Status: Community Service: References: Additional Statements From Applicant: From Representation: From Member of Congress: Other Documentation (Describe): DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE...

  • NAVY | DRB | 2008_Navy | ND0801757

    Original file (ND0801757.rtf) Auto-classification: Denied

    The Board determined the awarded discharge characterization was appropriate and an upgrade would be inappropriate.After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found ADDENDUM: Information for the Applicant Complaint Procedures : If you believe that the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport...

  • NAVY | DRB | 2008_Navy | ND0801337

    Original file (ND0801337.rtf) Auto-classification: Denied

    The Board determined based on the limited documentation provided an upgrade would be inappropriate and the characterization of service received, “General (Under Honorable Conditions)”, was an appropriate characterization considering the time served and the UCMJ violation involved.After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record, Discharge Process and evidence submitted by the Applicant, the Board found ADDENDUM: Information for the...

  • NAVY | DRB | 2009_Navy | ND0900172

    Original file (ND0900172.rtf) Auto-classification: Denied

    The NDRB determined the Applicant’s contention isagain without merit and an upgrade would be inappropriate.After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found ADDENDUM: Information for the Applicant Complaint Procedures : If you believe that the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the...

  • NAVY | DRB | 2007_Navy | ND0701156

    Original file (ND0701156.rtf) Auto-classification: Denied

    The Board determined that the documentation provided by the Applicant did not mitigate the misconduct which resulted in the Applicant’s discharge and the characterization of his service. After a thorough review of the available evidence to include the Applicant’s summary of service, medical and service record entries, discharge process and evidence submitted by the Applicant the Board found that Pertinent Regulation/Law A.Naval Military Personnel Manual, (NAVPERS 15560C), Change 9,...

  • USMC | DRB | 2013_Marine | MD1300325

    Original file (MD1300325.rtf) Auto-classification: Denied

    The evidence of record also reflects the Applicant was found guilty at nonjudicial punishment for violations of UCMJ Articles 121 (Larceny, 2 specifications), 107 (False official statement), and 112a (Wrongful use, possession, etc. ” Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s date of discharge. There is no requirement or...

  • USMC | DRB | 2012_Marine | MD1201812

    Original file (MD1201812.rtf) Auto-classification: Denied

    Relief denied.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain .The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of discharge. ” Additional Reviews : After a document review has been conducted, former members are...

  • NAVY | DRB | 2008_Navy | ND0801590

    Original file (ND0801590.rtf) Auto-classification: Denied

    Applicant’s Request:Characterization change to:Narrative Reason change to: Summary of Service Prior Service: Inactive: USNR (DEP)20000925 - 20010807Active: Period of Service Under Review: Date of Enlistment: 20010808Period of Enlistment: YearsExtensionDate of Discharge:20040521Length of Service:Years Months14 DaysEducation Level:Age at Enlistment:AFQT:NFIRHighest Rank/Rate:OSSNEvaluationMarks:Performance:NFIR Behavior:NFIROTA: NFIRAwards and Decorations (per DD 214):Rifle , Pistol...